Rule 12 Motion to Dismiss Under 35 U.S.C. § 101 Waives Venue Challenge Despite Purported Reservation of Right to Challenge Venue in Defendant’s Answer​

The magistrate judge recommended denying defendant's motion to dismiss plaintiff's patent infringement action for improper venue and rejected defendant's argument that it preserved its venue challenge in its answer. "[Defendant] argues that it properly preserved its venue defense in its Answer because it denied that venue was proper and further stated: 'to the extent the U.S. Supreme Court decides that 28 U.S.C. § 1400(b) is the exclusive statute for determining venue in patent cases . . ., [defendant] reserves the right to amend its answer and/or seek to dismiss this case based on improper venue.'. . . While exceptions to Rule 12(g)(2)’s timing requirement exist for challenges related to failure to state a claim or lack of subject matter jurisdiction, there are no exceptions to Rule 12(g)(2) for venue. [Defendant] thus waived its improper venue defense by filing its Motion to Dismiss for Failure to State a Claim. . . . [Defendant] could have easily filed its 35 U.S.C. § 101 Motion as a Rule 12(c) Motion for Judgment on the Pleadings after the Supreme Court decision issued and any potential improper venue challenge was resolved. Instead, [defendant] proceeded to argue the merits of the case in bringing its first Motion to Dismiss under Rule 12(b)(6)."

Realtime Data LLC d/b/a IXO v. Carbonite, Inc. et al, 6-17-cv-00121 (TXED July 11, 2017, Order) (Love, MJ)